Executive Law Advocates v The Comptroller of Customs

• Jurisdiction: Bahamas
• Judge: Madam Justice G. Diane Stewart
• Judgment Date: 14 December 2022
• Year: 2022
• Court: Supreme Court (Bahamas)
• Docket Number: 2018/PUB/jrv/00030

Between

Executive Law Advocates

Intended Applicant

and

The Comptroller of Customs

Intended First Respondent

AND

The Minister of Finance

Intended Second Respondent

BS 2022 SC 156

Before:

The Hon. Madam Justice G. Diane Stewart

2018/PUB/jrv/00030

IN THE SUPREME COURT

PUBLIC LAW DIVISION

Appearances:

Mr. Anthony Scriven for the Intended Applicant

Mrs. Sophia Thompson-Williams and Mr. David Whyms for the Intended Respondents

RULING

1 The Intended Applicant, Executive Law Advocates (the “Intended Applicant”), by an Amended Application for Leave to Apply for Judicial Review and for Interim Relief filed 13 ^th December 2018 seeks the leave of the Court to apply for judicial review in order to obtain the following declarations and orders against the Respondents, The Comptroller of Customs and The Minister of Finance (the “Intended Respondents”):-

• — A Declaration that section 100 (3) of the Customs Management Act 2011 does not give the Respondents the authority to send demand letters of authorization to the Intended Applicant's clients instead of the Intended Applicant after receiving letters from the Intended Applicant as their client's legal representatives;

• — A Declaration that the Respondents have acted illegally by sending demand letters to the Applicant's clients in accordance with section 100 (3) of the Customs Management Act;

• — A Declaration that the Respondents acted ultra vires section 100 (3) of the Customs Management Act;

• — A Declaration that section 100 (3) of the Customs Management Act applies to persons authorized to submit entries to the Customs department and not legal representation;

• — A Declaration that section 100 (3) of the Customs Management Act exempts a certain group of persons who are qualified to represent a person;

• — An Order that the Intended Applicant falls in a category of persons qualified to represent persons and is therefore exempt according to section 100 (3) of the Customs Management Act; and

• — An Order that the Respondents discontinue to send demand letter to the Applicant's clients after receiving letters of representation by the Applicant.

2 The Intended Applicant also seeks interest on all sums found due to at such rate and for such period as the Court thinks fit. The grounds relied on mirrors the relief sought, (the “JR Leave Application”)

BACKGROUND

3 The JR Leave Application was supported by the Affidavit of Leon Bethel (“Mr. Bethel”) filed 17 ^th August 2018. Mr. Bethel, an attorney and partner in the firm that is the Intended Applicant, averred that on 2 ^nd March 2018, the Client retained its services in relation to a matter with the Bahamas Customs Department and the importation of goods.

4 The Intended Applicant sent a letter to the Intended First Respondent dated 2 ^nd March 2018, advising the Intended First Respondent that they had been retained by the Client to represent them. The Client then received a communication by way of email dated 16 ^th April 2018 from Senior Revenue Officer Cranston Evans demanding a written notification that the Intended Applicant represented the Client.

5 In response, by email also dated 16 ^th April 2018, the Client requested that the Intended First Respondent's request be made in a formal manner. By a demand letter dated 20 ^th April 2018 the Comptroller of Customs requested that the Client write to the Intended First Respondent verifying that they would be represented by Tony Scriven/Executive Law Advocates. The Intended Applicant then, by letter dated 30 ^th April 2018, wrote to the Intended Second Respondent, advising that there were no provisions under the Customs Management Act for the request made by the Comptroller of Customs.

6 In turn, the acting Financial Secretary within the Ministry of Finance wrote to the Intended Applicant on 30 ^th May 2018, stating that the Comptroller of Customs had such authority to make the request by virtue of Section 100 (3) of the Customs Management Act. By letter dated 4 ^th June 2018, the Intended Applicant informed the Intended Second Respondent that the aforementioned section was not applicable to the request made by the Comptroller of Customs. On 19 ^th July 2018, the Comptroller of Customs wrote to the Client and requested that the Client confirm to them that the Intended Applicant was its legal representative.

7 The Intended Respondents filed their Affidavit in Response on 1 ^st November 2018. By the said Affidavit, Dr. Geannine Moss, who was appointed as the Comptroller of Customs since 8 ^th August 2017, stated that on 28 ^th November 2017 a field audit was conducted by the Intended First Respondent at the premises of the Client, with its owner Mr. Sheldon Morris (“Mr. Morris”) present and during business hours.

8 Mr. Morris was given notification by the Intended First Respondent of the audit and was requested to present certain documents to the Customs Post Clearance Audit Unit in order to assist them in conducting their audit. By letter dated 8 ^th December 2017, the Intended First Respondent received correspondence from Mr. Morris requesting more time to obtain the documents requested.

9 By letter dated 19 ^th December 2017, Mr. Morris advised the Intended First Respondent that he was unable to comply with their request as his computer system had crashed which resulted in him losing certain data. The Intended First Respondent had also received a letter from Serving Dealer Worldwide, a storage facility in Florida, which contained the Client's storage server. The said storage facility informed the Intended First Respondent that their systems had sustained damage from Hurricane Irma which prevented them from providing certain information.

10 On 25 ^th January 2018, Mr. Morris received the initial findings of the Intended First Respondent's audit. Thereafter, a meeting was scheduled for Mr. Morris to see Superintendent Gomez of the Intended First Respondent to review the findings of the audit and to provide further proof of duty payments as had been previously requested. Mr. Morris never attended the meeting.

11 By letter dated 2 ^nd March 2018, the Intended First Respondent received a letter from the Intended Applicant, informing them that they represented the Client. An email dated 16 ^th April 2018 was sent to the Client requesting a formal letter verifying that the Intended Applicant in fact represented the Client. By letter the Intended Respondent advised that once the letter of authorization was sent, the Intended First Respondent would release information to the Intended Applicant.

12 The request was as a result of previous interjections by Mr. Anthony Scriven, an attorney within the Intended Applicant who purportedly represented other clients who did business with the Intended First Respondent. Some of the clients had already admitted guilt in breach of certain regulations of the Intended First Respondent and had indicated that they no longer wished to be represented by him.

13 Prior to the matter involving the Client, the Intended First Respondent had requested written authorization from their clients who claimed to have certain attorneys representing them. Sections 99 and 100 (3) allows the Comptroller of Customs to request such authorization.

ISSUES

14 The Intended Applicant submits that there are two issues, namely:-

• 14.1. Whether the Intended First Respondent or Intended Second Respondent has the authority by section 100 (3) of the CMA to send demands to the Applicant's clients?' and

• 14.2. Whether the Intended First Respondent was in breach of Article 26 (2) of the Constitution of The Bahamas by using her public office to discriminate against the Intended Applicant?

15 The Intended Respondents submit that the two issues for the Court's consideration are:-

• 15.1. Whether the Court should act in vain in entertaining an application for judicial review and the reliefs prayed when there has in fact been no decision taken by the Comptroller of Customs to review?; and

• 15.2. Whether on the true construction of the Customs Management Act the Comptroller of Customs could request from its client a letter or authorization that he was being represented by the Intended Applicant?

SUBMISSIONS

Intended Applicant's Submissions

16 The Intended Applicant relies on the guiding principles governing judicial review applications as set out in Order 53 of the Rules of the Supreme Court in addition to the inherent jurisdiction of the Court.

17 They submit that the Intended Respondents failed to interpret section 100 (3) of the Customs Management Act (the “CMA”) in accordance with the guiding principles for statutory interpretation. The CMA should be reviewed in the context in which it was written, it must be read as a whole and not a part. Section 100 (3) is found in “Part VII Division Two — Persons Authorised to Make Entries”. The caption speaks to the persons of which this section is applicable, namely, persons authorized to make entries, namely custom brokers.

18 Section 100 of the CMA is captioned “Empowerment of authorized agent” and speaks to how the authorized agent receives authority to act on behalf of another, granted by the Comptroller of Customs. Section 100 (3) provides:-

“The Customs authority may require any person stating that they are acting in the nature of or on behalf of another person to produce evidence of their powers to act as an authorized agent except where a person belongs to a category of persons entitled to act on behalf of another person.”

19 The section is very clear as it states what evidence must be produced to show that the person has the power to act as an authorized agent and it further provides an exception to the requirement exempting persons who belong to a category of persons entitled to act on behalf of another person. Even if the section were applicable they would fall under the exemption of the section. They are entitled to act on behalf of other persons. It...